Regional Radio Group, LLC v Bailey

[*1] Regional Radio Group, LLC v Bailey 2018 NY Slip Op 50326(U) Decided on March 7, 2018 Supreme Court, Warren County Muller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 7, 2018
Supreme Court, Warren County

Regional Radio Group, LLC and CLAY ASHWORTH, Individually, Plaintiffs,

against

Colleen Bailey, Defendant.



64072



Joseph C. Berger & Associates, P.C., Hyde Park (Joseph C. Berger of counsel), for plaintiffs.

Stanclift Law PLLC, Queensbury (Taalib T. Horton of counsel), for defendant.
Robert J. Muller, J.

From 2003 to 2006, defendant Colleen Bailey worked as a sales representative for Adirondack Broadcasting under the supervision of its general manager, plaintiff Clay Ashworth. In 2006, Ashworth left Adirondack Broadcasting and purchased plaintiff Regional Radio Group, LLC (hereinafter Regional Radio). Defendant remained at Adirondack Broadcasting until 2009, at which time she was hired by Ashworth as general sales manager of Regional Radio. She then remained with Regional Radio until her resignation in September 2013.

In March 2015, defendant commenced a sexual discrimination action against plaintiffs in the United States District Court for the Northern District of New York. Plaintiffs subsequently moved for summary judgment dismissing the complaint, which motion was granted by Memorandum-Decision and Order dated March 15, 2017 (Bailey v. Regional Radio Group, LLC, 2017 WL 1025948).

Plaintiffs then commenced this action for malicious prosecution on June 28, 2017. Issue has now been joined with defendant asserting a counterclaim for breach of contract. Presently before the Court is plaintiffs' motion to disqualify Tucker C. Stanclift, Esq. as counsel for defendant and defendant's cross motion for sanctions. The motion and cross motion are addressed ad seriatim.

Motion to Disqualify

Plaintiffs first contend that defense counsel is disqualified from representing defendant as a result of his sexual relationship with her.

Rule 1.8 (j) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides as follows:

"(1) A lawyer shall not:(i) as a condition of entering into or continuing any professional representation by the lawyer or the lawyer's firm, require or demand sexual relations with any person;(ii) employ coercion, intimidation or undue influence in entering into sexual relations incident to any professional representation by the lawyer or the lawyer's firm; or(iii) in domestic relations matters, enter into sexual relations with a client during the course of the lawyer's representation of the client.(2) [This] Rule . . . shall not apply to sexual relations between lawyers and their spouses or to ongoing consensual sexual relationships that predate the initiation of the client-lawyer relationship."

Here, the record amply establishes that defendant's sexual relationship with counsel is consensual and predates the initiation of any client-lawyer relationship. Indeed, it is undisputed that defendant and her counsel became romantically involved in 2012, moving in together later that year and subsequently becoming engaged. Under these circumstances defense counsel would not be disqualified from representing defendant as a result of his sexual relationship with her. This Court cannot read Rule 1.8 (j) as so Draconian that a personal relationship which developed prior to the legal representation by one of the other can be violative of the rule. Indeed the Rule says as much.

Plaintiffs next contend that counsel is disqualified from representing defendant because he will likely be called as a witness.

Rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0) — the so-called advocate-witness rule — provides as follows:

"(a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless:(1) the testimony relates solely to an uncontested issue;(2) the testimony relates solely to the nature and value of legal services rendered in the matter;(3) disqualification of the lawyer would work substantial hardship on the client;(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or(5) the testimony is authorized by the tribunal."

The advocate-witness rule "is not to be mechanically applied, as disqualification of an attorney is a matter which rests within the sound discretion of the trial court" (Advanced Visual [*2]Concepts, Ltd. v Saffron Props., LLC, 51 Misc 3d 50, 51 [App Term 2016] [citations omitted]; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 444-445 [1987]; Lauder v Goldhamer, 122 AD3d 908, 910 [2014]). "Since a party's right to be represented by counsel of its choosing is a valued right, a party seeking disqualification of an opposing party's counsel bears the burden of demonstrating that disqualification is warranted" (Advanced Visual Concepts, Ltd. v Saffron Props., LLC, 51 Misc 3d at 51 [citations omitted]; see Mediaceja v Davidov, 119 AD3d 911, 911 [2014]; Halberstam v Halberstam, 122 AD3d 679, 679 [2014).

"To prove malicious prosecution, plaintiff[s] will be required to establish that defendant acted with malice in commencing the action[] against [them], that the action[ was] entirely lacking in probable cause, that [the action was] terminated in plaintiff[s'] favor and that [plaintiffs] suffered special injury" (James v Flynn, 132 AD3d 1214, 1215 [2015]; see Perryman v Village of Saranac Lake, 41 AD3d 1080, 1081 [2007]; Black v Green Harbour Homeowners' Assn., Inc., 37 AD3d 1013, 1014 [2007]).

Here, plaintiffs have demonstrated that the defendant's attorney could be called as a witness on the issue of whether defendant acted with malice in commencing the federal action, as well as on the issue of whether the federal action was entirely lacking in probable cause. He was romantically involved with and living with defendant during the relevant time period — i.e., from the time of her employment with Regional Radio to the time of commencement of the federal action — and he obviously had knowledge of the matter. Indeed, plaintiffs have provided a copy of a declaration he submitted in opposition to plaintiffs' motion for summary judgment in the federal action. In this declaration — dated October 7, 2016 — defense counsel begins by stating that he is "engaged to [defendant]" and then proceeds to recount all of the sexual discrimination defendant described to him during the course of her employment with Regional Radio.

In opposition to the motion, defendant contends that she will suffer substantial hardship if her attorney is disqualified from representing her in this action. Specifically, defendant states as follows:

"I am a part time realtor and waitress. My annual income is significantly reduced from when I was the Sales Manager at Regional Radio . . . .[FN1]Mr. Ashworth knows that as well. His effort to disqualify Mr. Stanclift is yet another attempt to take advantage of me and my situation. I simply cannot afford to engage the services of another attorney".

Defendant perhaps more relevantly contends that her attorney's testimony is not necessary on the issue of whether she acted with malice in commencing the federal action or the issue of whether the federal action was entirely lacking in probable cause. According to defendant, she "used the services of three attorney[s]" to file the federal action, with "[e]ach attorney render[ing] an opinion that the claim was meritorious". One attorney filed a claim with the Equal Employment Opportunity Commission (EEOC) on her behalf. Then, after she received "a Right to Sue Letter from the EEOC", a second attorney was engaged who then referred the case to a third who became the attorney of record in the federal action. Defendant persuasively asserts that [*3]any of these attorneys could be deposed, thus eliminating the need for her present attorney's testimony.

The Court finds no reason to disqualify this defense counsel from representing the defendant under the advocate-witness rule. Not only does it appear that his disqualification will result in substantial hardship to defendant, but it also appears that his testimony is not strictly necessary. "Disqualification of an attorney under the advocate-witness rule is required only when it is likely that the testimony to be given by the attorney as witness is 'necessary'" (Anderson & Anderson LLP-Guangzhou v North Am. Foreign Trading Corp., 45 Misc 3d 1210[A], 2014 NY Slip Op 51530[U], *3 [Sup Ct, NY County 2014] [citations omitted], quoting S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 446). To that end, "[t]estimony may be relevant and even highly useful but still not strictly necessary" (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 446; accord Anderson & Anderson LLP-Guangzhou v North Am. Foreign Trading Corp., 2014 NY Slip Op 51530[U] at *3). "A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence" (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 446; accord Anderson & Anderson LLP-Guangzhou v North Am. Foreign Trading Corp., 2014 NY Slip Op 51530[U] at *3). Here, there are several other witnesses who can testify on the issues of whether defendant acted with malice in commencing the federal action, as well as whether the federal action was entirely lacking in probable cause.

If the Court's analysis on this issue is contradicted in the course of discovery plaintiff' counsel is invited to file a successive motion on this narrow issue.

Cross Motion for Sanctions

Defendant contends that plaintiffs' motion to disqualify her attorney is frivolous and was filed merely to harass and maliciously injure her and counsel. As a result, defendant seeks sanctions pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1.

Courts may impose discretionary costs or sanctions against a party who engages in "frivolous conduct" (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [a], [b]). Conduct will be deemed frivolous if "(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [c]; see Kinge v State of New York, 302 AD2d 667, 670 [2003]).

Here, the subject matter of the motion may very well be "salacious" as defendant's submissions have chosen to characterize it. With that said, given the nature of this attorney's relationship with defendant and the fact that he submitted a declaration in opposition to plaintiffs' motion for summary judgment in the federal action, it cannot be said that plaintiffs' motion to disqualify is completely without merit and filed merely to harass and maliciously injure him and defendant.

Therefore, having considered the Affirmation of Joseph C. Berger, Esq., dated September 6, 2017 with exhibits "A" through "C" attached thereto, submitted in support of the motion; the Affirmation of Taalib T. Horton, Esq., dated September 22, 2017 and the Affidavit of Colleen [*4]Bailey sworn to September 22, 2017 submitted in opposition to the motion and in support of the cross motion and upon oral argument held on February 21, 2018, it is hereby

ORDERED that plaintiffs' motion for disqualification of Tucker C. Stanclift, Esq. pursuant to the Rule 1.8 (j) (22 NYCRR 1200.0) and Rule 3.7 (22 NYCRR 1200.0) Rules of Professional Conduct is denied, in its entirety, without prejudice for renewal upon further discovery, and it is further

ORDERED that defendant's cross motion for sanctions is denied in its entirety, and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated September 6, 2017 and the Notice of Cross Motion filed on September 22, 2017. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.

Dated:March 7, 2018

Lake George, New York

ROBERT J. MULLER, J.S.C.

ENTER: Footnotes

Footnote 1:Defendant earned $50,000.00 per year — plus commission — as the Sales Manager at Regional Radio.